Petition for Writ of Certiorari — Muhammad Masood, Petitioner v. United States

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2024

MUHAMMAD MASOOD,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

JORDAN S. KUSHNER

Counsel of Record

Attorney for Petitioner

431 South 7th Street

Suite 2446

Minneapolis, MN 55415

(612) 288-0545

INDEX

Opinion of Eighth Circuit Court of Appeals, filed April 3, 2025

1A

Order denying petition for rehearing en banc or rehearing,

filed June 27, 2025

17A

Order of district court ruling on requests for downward departures and/or

variances

18A

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 23-2993

___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Muhammad Masood

lllllllllllllllllllllDefendant - Appellant

____________

Appeal from United States District Court

for the District of Minnesota

____________

Submitted: October 25, 2024

Filed: April 3, 2025

____________

Before LOKEN, SMITH, and GRASZ, Circuit Judges.

____________

LOKEN, Circuit Judge.

Muhammad Masood, a licensed physician from Pakistan, came to the United

States in 2018 on a non-immigrant visa sponsored by the Mayo Clinic’s Student

Exchange Visitor Program to work as an unpaid medical researcher in Rochester,

Minnesota. In 2019, after watching internet content from radicalized Islamic

extremists, Masood was led to believe that the Islamic State of Iraq and al-Sham

(ISIS) was “where the truth was.” In March 2020, he was arrested at the Minneapolis

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airport before boarding a flight to Los Angeles with plans to illegally travel by cargo

ship to ISIS-controlled territory. In a search of Masood and his luggage, FBI agents

found military and medical supplies, computers, and multiple digital storage devices.

One storage device contained over 900 deleted images of Islamic extremist

propaganda, including multiple depictions of violence committed by ISIS and

graphics illustrating death tolls from Islamic extremist attacks. Masood was charged

and pleaded guilty to attempting to provide material support to a designated foreign

terrorist organization in violation of 18 U.S.C. § 2339B.

The Presentence Investigation Report (PSR) calculated an advisory guidelines

sentencing range of 292 to 365 months imprisonment, capped at the statutory

maximum of 240 months. The district court1 adopted the PSR as modified by the

statutory maximum sentence, varied downward, and sentenced Masood to 216 months

imprisonment. Masood appeals the sentence, arguing the court (1) procedurally erred

by applying the terrorism enhancement in USSG § 3A1.4; (2) procedurally erred in

considering the 18 U.S.C. § 3553(a) sentencing factors; and (3) violated his due

process rights and his right to allocution by deciding disputed sentencing issues prior

to the sentencing hearing. We affirm.

I. Background

There was no testimony at Masood’s sentencing hearing. The PSR detailed

extensive Offense Conduct facts in 21 lengthy paragraphs, focusing in particular on

Masood’s contacts in early 2020 with two FBI “confidential human sources,”

identified as CHS-1 and CHS-2. Though Masood objected to the recommended

terrorist enhancement and complained that the PSR presented “just the most

inflammatory quotes from the extensive messaging,” he did not object to these factual

1

The Honorable Paul A. Magnuson, United States District Judge for the District

of Minnesota.

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paragraphs, and the district court adopted the PSR at sentencing. Therefore, we treat

those facts as established. See Fed. R. Crim. P. 32(i)(3)(A); United States v. Cramer,

962 F.3d 375, 380 (8th Cir. 2020). The following summary is based on Offense

Conduct and Personal and Family Data fact recitations in the PSR.

After completing medical school in Pakistan, Masood traveled to the United

States in 2018 on a non-immigrant visa sponsored by the Mayo Clinic to work as an

unpaid medical researcher. While working in that position, he took the foreign

medical graduate licensing exam, which he failed. Soon after, Masood married a U.S.

citizen, but they divorced less than a year later. In 2019, isolated and depressed,

Masood began watching videos and internet content from radicalized Islamic

extremists, including Anwar Al-Awlaki, which led him to believe that ISIS was

“where the truth was.” Online content about conditions in Syria prompted Masood

to use his medical training to help. But by the time he contacted CHS-1, his intent

had shifted from intending to aid to intending to fight.

In January 2020, CHS-1 informed the FBI that a user of an encrypted social

media platform, soon identified as Masood, was planning to provide material support

to ISIS. Masood contacted CHS-1 on the encrypted platform on January 24 and

requested help traveling to an ISIS-controlled region. In communicating with CHS-1

for nearly a month, Masood made numerous comments reflecting an intent to fight

for ISIS -- he “wanted to fight on the front line as well as help the wounded brothers;”

he “belong[ed] on the frontline and not anywhere else;” he wanted “to help

mujahideen (individuals fighting on behalf of Islam against non-believers) on the

ground.” He also said that he sometimes wanted to attack while “behind enemy lines”

in the United States because many others cannot “reach here to attack.” He wondered

whether traveling to ISIS-controlled territory to fight would cause him to “miss the

opportunity of attacking the enemy . . . in the middle of things.” But he wanted to

make hijra (migrate) to Syria because he “hates smiling at the passing kuffar” (nonbelievers) in the United States and “cannot tolerate it anymore.”

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Masood sought CHS-1’s assistance in getting a visa to Jordan and sent a photo

of his Pakistani passport. After he traveled to Syria, Masood noted, he would need

weapons training and said he could learn engineering to modify drones for use in

bombings. He suggested a “team of trusted brothers” to modify drones to be “almost

like flying grenades,” and he developed “creative” concepts for lethal use of drones

as weapons. On February 1, when CHS-1 sent a message that Masood might have to

kill people, he responded, “i want to kill and get killed . . . and kill and get killed.”

On February 13, Masood told CHS-1, “I should be on the ground helping brothers

sisters kids.” They discussed arranging a video conference with a purported ISIS

commander. On February 19, Masood traveled to a hotel in suburban Minneapolis

where he and CHS-1 held a secretly recorded video conference with CHS-2, whom

Masood believed to be an ISIS commander located in a foreign country. Masood

explained to CHS-2 how he had learned the truth from Anwar-al-Awlaki (an al-Qaeda

leader later killed by the U.S. military) and confirmed that he wanted to go to Syria

“to be a combat medic . . . and also fight.” Offered the opportunity, Masood pledged

in Arabic a bayat (solemn promise of allegiance) to ISIS and its emir.

In March 2020, after an earlier trip to Jordan was cancelled by COVID-19

restrictions, Masood and CHS-1 developed a new plan of travel to ISIS-controlled

territory. Masood purchased a flight to Los Angeles. He was arrested at the

Minneapolis airport after proceeding through the security checkpoint, and a search

of his luggage found incriminating military equipment and a digital storage device

containing deleted images of Islamic extremist propaganda, depictions of violence

committed by ISIS, and graphics reporting deaths of citizens of various nations

resulting from Islamic extremist attacks. This indictment followed.

II. Procedural History

Masood was placed on suicide watch during his first week in jail. He became

non-responsive or incoherent in conversations with his counsel. The district court

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granted his motion for a competency evaluation. Diagnosed with psychotic and

depressive disorders, the evaluating doctor opined that he was not competent to

proceed. The court determined that Masood was incompetent to stand trial and

committed him for treatment to restore competency. In December 2021, the Bureau

of Prisons reported that Masood was competent to stand trial. In June 2022, the court

without objection found Masood competent to proceed to trial. Masood pleaded

guilty in August 2022 to the charged offense without a plea agreement.

The PSR recommended a total offense level of 35, determining that the base

offense level of 26 should be adjusted twelve-levels upward under § 3A1.4(a) for a

terrorism enhancement as defined under 18 U.S.C. § 2332b(g)(5) and reduced by

three levels for acceptance of responsibility. It recommended that Masood’s criminal

history category should be increased from I to VI because his offense involved a

federal terrorism charge under USSG § 3A1.4(b). The PSR recommended the

statutory maximum sentence of 240 months imprisonment.

Pertinent to his appeal, Masood objected to the twelve-level terrorism

enhancement, arguing that his offense did not meet the specific intent that

§ 2332b(g)(5) requires for a federal crime of terrorism under § 3A1.4 because his

primary purpose underlying his conduct was to provide medical aide. He also sought

downward departures and variances based on factors including his history, aberrant

behavior, rehabilitation, and unlikely recidivism.

At sentencing, the district court began by commenting on the guidelines range.

It announced that it would hear argument from the parties on the guidelines and

variance issues and stated that it would provide the parties with a written Order at

recess that contained its findings on these issues. This Order was distributed to give

the parties an “opportunity to peruse through” its findings for “familiarity” before

returning for further argument, allocution, and final sentencing. It did not state what

sentence would be imposed. During the hearing, the court heard from both counsel

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on the issues, invited statements from Masood’s family, and provided Masood an

opportunity for allocution. The court then imposed a sentence of 216 months

imprisonment, varying downward from the 240-month maximum for time served and

Masood’s efforts to “assist” himself. This appeal followed.

III. Sentencing Issues

Masood argues the district court procedurally erred at sentencing. Procedural

errors include “failing to calculate (or improperly calculating) the Guidelines range,

. . . failing to consider the § 3553(a) factors, . . . or failing to adequately explain the

chosen sentence -- including an explanation for any deviation from the Guidelines

range.” United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)

(quotation omitted). Masood argues the district court made each of these errors in

determining his sentence.

A. The Terrorism Enhancement. Masood first contends that the court

procedurally erred by improperly applying the terrorism enhancement in USSG

§ 3A1.4, a Victim-Related Adjustment to his base offense level that increased his

total offense level and criminal history category. We review the court’s “factual

findings for clear error and the construction and application of the advisory

sentencing guidelines de novo.” United States v. Ali, 799 F.3d 1008, 1029 (8th Cir.

2015). “[S]entencing judges are required to find sentence-enhancing facts only by a

preponderance of the evidence.” United States v. Scott, 448 F.3d 1040, 1043 (8th

Cir. 2006).

Masood’s offense of conviction, 18 U.S.C. § 2339B(a)(1), is violated by a

person who “knowingly provides material support or resources to a foreign terrorist

organization, or attempts or conspires to do so . . . . To violate this paragraph, a

person must have knowledge that the organization is a designated terrorist

organization (as defined . . .), that the organization has engaged or engages in terrorist

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activity (as defined . . .), or that the organization has engaged or engages in terrorism

(as defined . . .).” At least three other circuits have ruled that this “knowingly” mens

rea element requires the government to prove the defendant’s specific intent to

violate the law. See United States v. Mohamed, 757 F.3d 757, 759 (8th Cir. 2014),

and cases cited.2

Section 3A1.4 of the Guidelines, entitled Terrorism, provides:

(a)

If the offense is a felony that involved, or was intended to promote, a

federal crime of terrorism, increase by 12 levels; but if the resulting

offense level is less than level 32, increase to level 32.

(b)

In each such case, the defendant’s criminal history category from

Chapter Four . . . shall be Category VI.

Application Note 1 provides that “‘federal crime of terrorism’ has the meaning given

that term in 18 U.S.C. § 2332b(g)(5).” USSG § 3A1.4, comment. (n.1).

Section 2332b(g)(5) provides that “‘Federal crime of terrorism’ means an

offense that (A) is calculated to influence or affect the conduct of government by

intimidation or coercion, or to retaliate against government conduct; and (B) is a

violation of” enumerated federal offenses. (cleaned up). Masood acknowledges that

his conviction for violating § 2339B satisfies the second requirement. The issue is

whether the district court erred in finding that his violation of § 2339B was

“calculated to influence or affect the conduct of government by intimidation or

coercion, or to retaliate against government conduct.”

2

The Supreme Court quoted a well-accepted articulation of this element in

Liparota v. United States -- “that the defendant knowingly did an act which the law

forbids, purposely intending to violate the law.” 471 U.S. 419, 422 & n.3 (1985).

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Masood argues there is insufficient evidence in the sentencing record that his

offense is a “federal crime of terrorism” within the purview of § 3A1.4(a) because the

government presented no evidence that he acted with the specific intent to violate

§ 2339B(a)(1), that is, evidence of conduct “calculated to influence or affect the

conduct of government by intimidation or coercion, or to retaliate against government

conduct,” as the first prong of § 2332b(g)(5) requires. Therefore, it was procedural

error to impose the 12-level sentencing enhancement and increase his criminal history

category. Masood argues the record establishes that his only motivations were to

provide medical aid and act according to his “religious fanaticism.” We disagree.

In applying § 2332b(g)(5)(A)’s requirement, we have twice held that “motive

is simply not relevant . . . . ‘Motive’ is concerned with the rationale for an actor’s

particular conduct.” Mohamed, 757 F.3d at 760 (quotation omitted). “Calculation

is concerned with the object that the actor seeks to achieve through planning or

contrivance.” Ali, 799 F.3d at 1031 (8th Cir. 2015), quoting Mohamed, 757 F.3d at

760; see also United States v. Awan, 607 F.3d 306, 317 (2d Cir. 2010). “[T]his

standard does not focus on the defendant but on his ‘offense,’ asking whether it was

calculated, i.e., planned -- for whatever reason or motive -- to achieve the stated

object.” Ali, 799 F.3d at 1031 (quotation omitted).

The district court noted that the § 3A1.4 enhancement applies if Masood’s

offense was “‘intended to promote’ terrorism,” not only if it was “calculated to

influence or affect the conduct of government by intimidation or coercion”:

Thus, “so long as the defendant’s offense was intended to encourage,

further, or bring about a federal crime of terrorism as statutorily defined,

the defendant himself does not have to commit an offense listed in

§ 2332b(g)(5)(B), and the defendant’s offense need not itself be

‘calculated’ as described in § 2332b(g)(5)(A).” Awan, 607 F.3d at 314.

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(cleaned up). The court then concluded the evidence establishes that Masood’s

offense met either of the two § 3A1.4(a) alternatives:

[Masood] testified under oath at the plea hearing that he knew he was

attempting to join ISIS, and that he knew that ISIS was a terrorist

organization. Masood also discussed with the purported ISIS recruiter

activities like developing drones for attack purposes. He talked with

that individual about committing “lone wolf” attacks in the United

States, and he offered to “kill and get killed.” He packed a tactical vest,

ammunition pouches, black camouflage military fatigues, and similar

items, in addition to items that would allow him to provide medical

treatment. All of these facts evidence his desire to either fight with ISIS

or provide support for ISIS’s terrorist activities, not merely provide

medical care.

Moreover, even if § 3Al.4 only applies to conduct that is

“calculated to influence or affect the conduct of government by

intimidation or coercion” under § 2332b(g)(5)(A), the evidence listed

above also suffices to establish by a preponderance of the evidence that

Masood’s conduct was so calculated. The provisions of § 3Al.4 apply.

The issue on appeal is whether the district court committed procedural error by

improperly calculating the Guidelines range by imposing the § 3A1.4 enhancement

based on factual findings made by a preponderance of the evidence. We conclude the

court did not err, much less clearly err, in finding by a preponderance of the evidence

that Masood’s offense involved and was intended to promote a federal crime of

terrorism and applying the § 3Al.4 enhancement. In Mohamed, we affirmed

application of a § 3Al.4 enhancement for a defendant who assisted men traveling to

Somalia to fight government forces, despite a lack of evidence of a personal

motivation to retaliate, influence, or affect government conduct. His actions to

support the terrorist organization were sufficient. This “is not a rejection of the

specific intent requirement.” 757 F.3d at 760. When the defendant pleads guilty to

offenses that “involved or were intended to promote crimes of terrorism . . . the

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requisite specific intent” exists under § 2332b(g)(5). Id. (cleaned up); see United

States v. Wright, 747 F.3d 399, 419 (6th Cir.) (“The court can find [specific] intent

based on circumstantial evidence and reasonable inferences from the facts

presented.”), cert. denied, 574 U.S. 866 (2014); accord United States v. Arcila

Ramirez, 16 F.4th 844, 854 (11th Cir. 2021), cert. denied, 145 S. Ct. 204 (2024).

Likewise, in Ali, we noted “it is clear that the § 3A1.4 terrorism enhancement

may be imposed on a defendant who has been convicted of providing material support

to a designated foreign terrorist organization.” 799 F.3d at 1030 (cleaned up). Like

the defendants in Mohamed and Ali, Masood “planned his offense -- whatever his

reasons or motivations -- with the purpose of influencing or affecting government

conduct.” Mohamed, 757 F.3d at 760. Moreover, his violent communications

reflected an intent to support ISIS terrorist activities against governments opposed to

ISIS, including attacks within the United States (“behind enemy lines,” where other

ISIS supporters “struggle to reach here to attack”).

“Under clear error review, we reverse only when the entire record definitely

and firmly illustrates that the lower court made a mistake.” United States v. Bradley,

127 F.4th 1127, 1132 (8th Cir. 2025) (cleaned up). The district court did not err in

applying the § 3A1.4 terrorism enhancement.

B. Failure to Consider and Explain Issues. Masood argues the district court

procedurally erred by failing to properly consider the § 3553(a) sentencing factors

when it “ignored or summarily dismissed substantial mitigating evidence” -- his

history of severe mental illness that made him susceptible to extremist influences,

forensic evidence that those convicted of terrorism-related offenses have low rates of

recidivism, evidence that defendants in more egregious terrorism cases “routinely”

received sentences of ten years or less, evidence of family support and post-offense

rehabilitation, and an order of removal upon completion of his sentence.

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Before the sentencing hearing, the district court received the PSR and

sentencing memoranda from the parties that comprehensively evaluated his offense

conduct, summarized his criminal and extensive personal history, and reviewed

§ 3553(a) factors that could warrant a departure or variance. These materials reported

that Masood, a licensed physician from Pakistan, struggled personally and

professionally before and after moving to the United States. During his youth and

medical schooling in Pakistan, Masood’s parents exerted extreme control over his life

and inhibited his social interactions, resulting in bullying and difficulty with social

interactions. After hospitalization for a nervous breakdown in 2011, he experienced

paranoid delusions and was diagnosed with Bipolar Affective Disorder with

Psychotic Features. Masood completed his medical degree. His father persuaded him

to leave Pakistan and take a position at the Mayo Clinic near his cousin in Rochester

in 2018 where he married a U.S. citizen. The marriage unraveled, in part because of

Masood’s traditionalist religious views. His mental health concerns continued,

aggravated by personal and professional setbacks.

At sentencing, the court noted its review of the PSR and sentencing

memoranda. During a recess, the court provided the parties with a sentencing Order

that stated it had “considered all of [the] factors in imposing Masood’s sentence” and

responded in detail to his contentions about mental health, aberrant behavior, and

others issues. “Thus, the district court was aware of [Masood’s] arguments, and we

therefore presume that the district court considered and rejected them.” United States

v. Wilcox, 666 F.3d 1154, 1157 (8th Cir. 2012) (quotation omitted).

Masood argues that the district court did not provide “any meaningful

consideration to substantial evidence of strong mitigating factors.” The court’s

consideration of the § 3553(a) factors was sufficient. We “presume that district

judges know the law and understand their obligation to consider all the § 3553(a)

factors.” United States v. Gray, 533 F.3d 942, 943 (8th Cir. 2008) (cleaned up).

“[W]e do not require a district court to provide a mechanical recitation of the factors

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it weighed; it simply must be clear from the record that the district court actually

considered the § 3553(a) factors in determining the sentence.” United States v.

Maluoth, 121 F.4th 1158, 1163-64 (8th Cir. 2024) (quotations omitted); see United

States v. Villareal-Amarillas, 562 F.3d 892, 898-99 (8th Cir. 2009).

It is clear from the record that the court sufficiently considered Masood’s

arguments for a sentencing variance, determined that other factors outweighed many

of those considerations, and still applied a downward variance. At sentencing,

Masood extensively argued that the court should apply a greater variance because of

his mental health and its improvement, because his actions were an aberration,

because data indicates a low likelihood of recidivism, and because other defendants

sentenced for allegedly analogous crimes received significantly lower sentences. The

court also heard from two members of Masood’s family, who spoke to his personal

history and circumstances. The district court did not “woefully fail[] to meet its

obligation to meaningfully consider the parties’ arguments and evidence presented,”

as Masood suggests. The court simply found these circumstances insufficient to

warrant a sentence lower than the downward variance it applied.

The district court has “wide latitude to weigh the 18 U.S.C. § 3553(a)

sentencing factors and to assign some factors greater weight than others.” United

States v. Haskins, 101 F.4th 997, 1000 (8th Cir. 2024) (quotations omitted).

“[D]isagreement with how the district court weighed the relevant sentencing factors

does not justify reversal.” United States v. Jones, 71 F.4th 1083, 1087 (8th Cir.

2023). “[S]imply because the district court weighed relevant factors . . . more heavily

than [Masood] would prefer does not mean the district court abused its discretion.”

United States v. Sisk, 999 F.3d 631, 636 (8th Cir. 2021) (quotation omitted). His

“disagreement with how the district court weighed the [§ 3553(a)] factors does not

demonstrate abuse of discretion.” United States v. McSmith, 968 F.3d 731, 737 (8th

Cir. 2020).

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“[N]ot every reasonable argument advanced by a defendant requires a specific

rejoinder by the judge.” United States v. Palkowitsch, 36 F.4th 796, 801 (8th Cir.

2022) (cleaned up). “Sometimes a judicial opinion responds to every argument;

sometimes it does not.” Rita v. United States, 551 U.S. 338, 356 (2007). There was

no procedural error in the district court’s consideration of the § 3553(a) sentencing

factors.

Masood further argues the district court procedurally erred by failing to

adequately explain the reasons for the sentence being imposed. Masood did not

object at sentencing to the district court’s explanation. “If counsel does not timely

object that the reasons for imposing a sentence have not been adequately explained,

defendant has voluntarily relinquished the issue by depriving the appellate court of

the district court’s response to a timely objection.” United States v. Dailey, 113

F.4th 850, 855 (8th Cir. 2024) (cleaned up). Therefore, our review is for plain error.

See United States v. Krzyzaniak, 702 F.3d 1082, 1085 (8th Cir. 2013).

A district court’s explanation must “set forth enough to satisfy the appellate

court that [it] has considered the parties’ arguments and has a reasoned basis for

exercising [its] own legal decision-making authority.” Rita, 551 U.S. at 356. “The

court’s explanation is sufficient if the sentencing record taken as a whole

demonstrates that the court considered the relevant factors.” Krzyzaniak, 702 F.3d

at 1085.

After considering Masood’s arguments, both in his sentencing memorandum

and at the hearing, the district court explained:

[N]otwithstanding mental illness, notwithstanding childhood difficulties,

notwithstanding all of that stuff that we have heard, you are sitting in

this Court as a convicted terrorist, and that’s the way it is. . . . [T]his

Court must give consideration to deterrence at large. That it gives notice

to anyone who has the concept of entering into terrorism to be deterred

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from doing so because of the penalty they will receive. And I’m

haunted in your case by the repeated statements that I will kill or be

killed. That’s almost beyond comprehension, and I’m so very, very sorry

to have read it and heard it. Now, I have indicated that I would give a

variance in this matter. . . . [W]hen we talk about people being

incarcerated, we always often talk about doing hard time. Well, sir,

you’ve had three and a half years of pure hard time. . . . [Y]ou were in

a county jail through the time of this pandemic that we’ve had in this

country, and I know the circumstances at Elk River were not good

circumstances during that period of time. And I commend you . . . for

what you have done during that time to assist yourself, and the

combination of these factors leads the Court to give a variance in your

case. It’s not a very big one, but it is a variance.

Viewing the sentencing record taken as a whole, this explanation is sufficient to

demonstrate that the court considered the relevant sentencing factors. There was no

procedural or substantive error.

IV. The Due Process Issue

At the start of the sentencing hearing, the district court noted that counsel no

doubt would argue guidelines and variance issues. “Preliminarily,” the court advised,

“pursuant to the [PSR], I would find that the total offense level is 35; the criminal

History Score is VI; and . . . the imprisonment range is 292 to 365 months [but] the

statutory maximum applicable to this case is 240 months.” After counsel then argued

the terrorism enhancement issue for eleven transcript pages, the court called a brief

recess, explaining:

I want to review a matter, and then I will anticipate that I will give you

a written order with respect to the court’s rulings on the proceedings of

this morning, and that I’ll give you an opportunity to persuse through

that so that you will have some familiarity with it, at which time we’ll

return to the court room and hear allocution . . . and sentencing.

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Ten minutes later, after the court circulated a written order, the session resumed and

the court stated: “you can see that I have denied the defense positions with respect

to this. I will stand with the findings that were originally read today.” Defense

counsel did not object to this procedure except to say it wished to present two

additional cases that concluded the Criminal History Category VI imposed with the

enhancement was overstated. The court responded, “Okay. Well, cite them now.”

On appeal, Masood argues the district court violated Federal Rule of Criminal

Procedure 32(i) and the Due Process Clause of the Fifth Amendment by deciding all

the disputed sentencing guidelines issues prior to the sentencing hearing. “The

sentencing hearing was meaningless because the district court had already made up

its mind.” This argument is without merit. Masood failed to object at sentencing, so

we review for plain error. United States v. Hoffman, 707 F.3d 929, 937 (8th Cir.

2013). No error exists much less plain error.

Rule 32(i)(1)(C) provides that at sentencing, the district court “must allow the

parties’ attorneys to comment on the probation officer’s determinations and other

matters relating to an appropriate sentence.” Here, Masood’s attorney was allowed

to comment and did comment in a lengthy sentencing memorandum and extensive

argument opposing the recommended terrorism enhancement at sentencing.

Rule 32(i)(4)(A) provides that, “[b]efore imposing sentence, the court must:

(i) provide the defendant’s attorney an opportunity to speak on the defendant’s behalf;

[and] (ii) address the defendant personally in order to permit the defendant to speak

or present any information to mitigate the sentence.” Failure to provide this right to

allocution is reversible error and mandates a remand for resentencing. United States

v. Walker, 896 F.2d 295, 301 (8th Cir.1990). However, there is no plain error if the

court announces its intent to impose a sentence and then grants the defendant his right

of allocution before imposing that sentence. United States v. Hentges, 817 F.3d 1067,

1069-70 (8th Cir. 2016); see United States v. Puckett, 715 F. App’x 578, 579 (8th Cir.

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Date Filed: 04/03/2025 Entry ID: 5502834

2018) (finding no violation when court stated intention to vary upwardly before

allocution). “Courts are not nearly as strict when a defendant allocutes at some point

during sentencing if that allocution retains the potential to affect the sentence.”

United States v. Hernandez-Espinoza, 890 F.3d 743, 747 (8th Cir. 2018).

Here, the district court announced preliminary findings about guidelines range

issues and then allowed Masood’s counsel to be heard on those issues. This

procedure did not establish the court “had already made up its mind.” It helped

counsel focus their arguments on disputed issues to know the court’s preliminary

reaction to the PSR and their sentencing memoranda. After arguments and a brief

recess, the court then distributed a written Order adopting its preliminary findings.

This was not a pre-allocution sentencing ruling; it did not even indicate what term of

imprisonment the court would oppose prior to allocution, only that the court would

vary downward, albeit to a lesser extent than Masood wanted. Defense counsel

asked, “are the variances still on the table?” The court said, “Yes.” The defense then

called two supporting witnesses, and counsel vigorously argued for an “extremely

substantial downward variance.” The district court then invited Masood to make

“comments . . . before penalty is imposed.” Masood responded with a lengthy

allocution, after which the court made its final sentencing determination. There was

no plain error violation of Rule 32(i) or the Due Process Clause.

For the foregoing reasons, the judgment of the district court is affirmed.

______________________________

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Date Filed: 04/03/2025 Entry ID: 5502834

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 23-2993

United States of America

Appellee

v.

Muhammad Masood

Appellant

______________________________________________________________________________

Appeal from U.S. District Court for the District of Minnesota

(0:20-cr-00076-PAM-1)

______________________________________________________________________________

ORDER

The petition for rehearing en banc is denied. The petition for rehearing by the panel is

also denied.

June 27, 2025

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

____________________________________

/s/ Susan E. Bindler

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